David Rosecky (left) and Stephen Hayes (right) pose with six boxes of files from the

Rosecky v. Schissel surrogacy case—the first of its kind in Wisconsin.

David and Marcia Rosecky had been friends withMonica and Cory Schissel for years—such greatfriends that Monica had, on multiple occasions, of-fered to carry a child for Marcia, who could not.

In 2009, the Roseckys agreed, and the embryo
was conceived via artificial insemination with
Monica’s egg and David’s sperm. The two couples
then entered into a parentage agreement. Stephen
Hayes, a family law attorney in Waukesha who
helped draft the agreement, says contracts are
typically done before a pregnancy is attempted.
This particular agreement gave the Roseckys both
physical placement and custody of the child after
the birth; it stated that Monica would cooperate
with the termination of her parental rights.

Right around the time the child was born, however, Monica told the Roseckys she had changed
her mind. Since Wisconsin didn’t have any laws on
whether or not a surrogacy contract is binding, David Rosecky filed a motion to enforce the parent-

Stephen Hayes tried the first traditional surrogacy case in Wisconsin,then helped write the law on it BY ANDREW BRANDTage agreement in Columbia County Circuit Court,and Hayes argued on the couple’s behalf. A neutralpsychologist met with the parties, and based ontheir evaluation, sided with the Roseckys.

In February 2011, the court awarded primary
placement to David, but also granted the Schissels six hours of placement every other weekend
until the child was 2—at which point the hours
would be increased.

“I was frustrated with the decision,” Hayes says.“My clients didn’t want to continue with her havingthat contact, because this wasn’t a divorce. It wasn’ta situation where the child had a relationship withone set of parents and that relationship was beingcut off. This was an agreed-upon plan wherebySo the Roseckys appealed. And because it was thefirst traditional surrogacy case in Wisconsin, the ap-peals court certified Rosecky v. Schissel for review bythe state Supreme Court, which the court accepted.

In January 2013, oral arguments were held. Hayes
had argued before the Supreme Court previously,
but this time, he says, the courtroom was “packed.”
An overflow crowd watched the arguments in the
capitol’s basement on a closed-circuit TV.

“We couldn’t find any [prior Wisconsin case]that was directly on point with our case, so weargued by analogy to a couple of cases outsideWisconsin,” says Hayes.

Six months later, the court ruled that a traditional surrogacy contract can be legally enforced.
The case was remanded back to Columbia County,
then transferred to Dodge County. Before hearings
began, a neutral custody evaluator interviewed
both parties and recommended the Roseckys have
exclusive placement. The Roseckys and Schissels
then reached a stipulation giving the Roseckys sole
placement. The judge approved.

The decision—the first significant surrogacy de-cision in Wisconsin history—creates an expectationthat a properly drawn surrogacy contract will beenforced by the law. “Some cases can mean a littlemore than others to you to win,” says Hayes. “I feltreal good about winning for these people.”Though he believes the case would have been aneasier one if Monica weren’t the biological mother,Hayes feels his clients were right from the start.

“They had a written agreement,” he says. “Youcan’t just walk away from a promise.”